Unmarried partner awarded a spouse's pension

The Supreme Court has ruled that an unmarried cohabiting partner should receive a survivor's pension under the Local Government Pension Scheme.

Comment

The decision is particularly relevant to public sector schemes whose rules require a member to nominate his or her unmarried cohabiting partner as a condition of eligibility to receive a pension on the member's death.  Such rules could now be unenforceable following the Supreme Court's ruling in this case.  The prominent public-sector trade union UNISON has already called for public sector pension schemes to re-examine their rules in light of this judgment.

The case is less relevant to private sector schemes as the ECHR is only directly applicable to public bodies and not private employers.  Although the Equalities Act 2010 inserts a non-discrimination rule into all pension schemes, the rule applies only to "protected characteristics" that are defined under the Act.  "Marriage and civil partnership" is a protected characteristic meaning persons in a marriage or civil partnership are protected against discrimination based on their marital status.  Unmarried cohabiting couples, however, enjoy no such protection and, therefore, a claim of the sort brought by Ms Brewster could not currently be brought in the context of a private pension scheme.

Nevertheless given the publicity generated by the decision, trustees of private sector schemes would be well advised to familiarise themselves with the death in service provisions under their scheme's rules to understand precisely who is eligible for a spouse's pension and whether this might include an unmarried cohabiting partner.  Where a person's eligibility depends upon a nomination, members should be reminded of the importance of keeping their nomination forms up to date.

Background
The Supreme Court has ruled that an unmarried cohabiting partner should receive a survivor's pension under the Local Government Pension Scheme in Northern Ireland despite the member having failed to complete a nomination form in accordance with the regulations governing the Scheme.  The Supreme Court found that the nomination requirement imposed on unmarried cohabiting partners under the regulations constituted unlawful discrimination contrary to article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

Case Summary
Lenny McMullan and Denise Brewster lived together for ten years before Mr McMullan's death in December 2009.  At the time of his death Mr McMullan was a member of the Local Government Pension Scheme Northern Ireland whose provisions are set out in regulations.  The regulations provided for the payment of a survivor's pension to a "surviving cohabiting partner" where the partner had been nominated by the member.  A nomination could only be made, however, where certain qualifying conditions had been satisfied for a continuous period of two years, including that the member and unmarried cohabiting partner were living together as if they were husband and wife; and the unmarried partner was financially dependant on the member, or the unmarried partner and member were financially interdependent.  The statutory body responsible for administering the scheme said that it had not received a nomination from Mr McMullan and refused to pay Ms Brewster a survivor's pension (despite Ms Brewster otherwise meeting the qualifying conditions).

Ms Brewster applied for judicial review of the decision not to award her a survivor's pension, arguing that the nomination requirement imposed on unmarried cohabiting partners under the regulations constituted unlawful discrimination contrary to article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

The High Court held that the nomination requirement was "an instrument of disentitlement" in relation to unmarried cohabiting partners and that, whilst the relevant regulation pursued a legitimate aim, there was not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.  The Hon Mr Justice Treacy therefore made an order declaring that the requirement of nomination of an unmarried cohabiting partner was not compatible with article 14 and quashed the decision not to pay a survivor's pension.

The decision was appealed and the Court of Appeal overturned the order concluding that the nomination was justified and proportionate.  Ms Brewster appealed to the Supreme Court.

Ms Brewster argued that the requirement for a nomination added nothing to the process of establishing whether the qualifying conditions had been met.  The Supreme Court agreed, holding that:

"the making of a nomination adds nothing to the evidential demands made of a survivor to show that she or he was in a longstanding relationship with the deceased scheme member and that they were either financially dependent on or financially interdependent with the deceased.  It is also evident that no intrinsic value attached to the making of such a nomination."

Noting that article 14 prohibits, amongst other things, discrimination on the basis of marital status, the Court considered whether the requirement of a nomination in the case of an unmarried cohabiting partner (but not in the case of a spouse or civil partner) was objectively justified.  The Supreme Court found that the inclusion of a nomination requirement in the regulation was "motivated solely by the desire to maintain consistency" between the Local Government Pension Scheme in Northern Ireland and the Local Government Pension Scheme in England and Wales (the nomination requirement was subsequently removed from the latter scheme in 2014).  The Court found that there was no connection between the imposition of a nomination requirement and the objective of the relevant regulation, which was to remove the difference in treatment between a longstanding cohabitant and a married or civil partner of a scheme member.  Accordingly the Supreme Court allowed the appeal and made a declaration that Ms Brewster was entitled to a survivor's pension under the Scheme.

Case report: Brewster, Re Application for Judicial Review  (Northern Ireland) [2017] UKSC 8 (8 February 2017)